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Megaupload, Kim Dotcom, and other interested parties filed a motion today in Federal District Court in the Eastern District of Virginia asking the court to dismiss the copyright claims that make up the core of the US Government's criminal case against the defendants. The motion was filed in the context of a forfeiture proceeding. The motion, if successful, could have a serious adverse impact on the viability of the Government's novel criminal theories.

Here is an excerpt from from the motion to dismiss submissions filed today:

Nearly three years ago, the United States Government effectively wiped out Megaupload Limited, a cloud storage provider, along with related businesses, based on novel theories of criminal copyright infringement that were offered by the Government ex parte and have yet to be subjected to adversarial testing. Thus, the Government has already seized the criminal defendants’ websites, destroyed their business, and frozen their assets around the world—all without benefit of an evidentiary hearing or any semblance of due process.

Without even attempting to serve the corporate defendants per the Federal Rules of Criminal Procedure, the Government has exercised all its might in a concerted, calculated effort to foreclose any opportunity for the defendants to challenge the allegations against them and also to deprive them of the funds and other tools (including exculpatory evidence residing on servers, counsel of choice, and ability to appear) that would equip robust defense in the criminal proceedings.

But all that, for the Government, was not enough. Now it seeks to pile on against ostensibly defenseless targets with a parallel civil action, seeking civil forfeiture, based on the same alleged copyright crimes that, when scrutinized, turn out to be figments of the Government’s boundless imagination. In fact, the crimes for which the Government seeks to punish the Megaupload defendants (now within the civil as well as the criminal realm) do not exist. Although there is no such crime as secondary criminal copyright infringement, that is the crime on which the Government’s Superseding Indictment and instant Complaint are predicated. That is the nonexistent crime for which Megaupload was destroyed and all of its innocent users were denied their rightful property. That is the nonexistent crime for which individual defendants were arrested, in their homes and at gunpoint, back in January 2012. And that is the nonexistent crime for which the Government would now strip the criminal defendants, and their families, of all their assets.